RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
MAR 3
120%
PEOPLE OF THE STATE OF ILLINOIS
)
STATE OF ILLINOIS
Pollution Control
Board
Complainant,
)
vs.
)
COMMUNITY LANDFILL COMPANY,
)
INC., an Illinois corporation, and the CITY OF
)
MORRIS, an Illinois municipal corporation,
)
Respondents .
)
NOTICE OF FILING
TO
:
All counsel of Record (see attached Service List)
Please take notice that on March 31, 2006, the undersigned filed with the
Illinois Pollution
Control Board, 100 West Randolph Street, Chicago, Illinois 60601, the City of Morris' Motion to
Reconsider
.
Case No. PCB No. 03-191
Dated March 31, 2006
Respectfully Submitted,
On behalf of lho-C-ITY-OF MORRIS
aw & C
rtson LLP
Charles F. Helsten
One of Attorneys
HINSHAW & CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100% recycled paper products
70415199v1806289
vs .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
COMMUNITY LANDFILL COMPANY, INC .,)
an Illinois Corporation, and the CITY OF )
MORRIS, an Illinois Municipal Corporation, )
Respondents .
)
Complainant,
PCB No. 03-191
RECEIVED
CLERKS OFFICE
W,R 3 12006
STATE OF ILLINOIS
Pollution Control Board
MOTION TO RECONSIDER
NOW COMES the City of Morris, pursuant to Section 101 .520 of the General Rules of
the Illinois Pollution Control Board, and, in support thereof, states as follows
.
1. That on or about February 27, 2006, the Respondent City of Morris received the February
16, 2006 Interim Opinion and Order of this Honorable Board, which addressed Cross Motions
for Summary Judgment filed by the People of the State of Illinois (State) . A true an accurate
copy of the Order received by the City (bearing the date stamp upon which the document was
physically received) is marked Exhibit A and attached hereto and incorporated herein by this
reference .
2. That Interim Opinion and Order of this Honorable Board granted the State's Motion for
Summary Judgment on the issue of the City's responsibility to provide closurelpost closure
financial assurance at the Morris Community Landfill, (located at 1501 Ashley Road, Morris,
Grundy County, Illinois), and denied the City's Cross Motions for Summary Judgment
pertaining to the same issue
.
70483473x1 806289
3 .
The City of Morris now respectfully moves this Honorable Board to reconsider its
Interim Opinion and Order of February 16, 2006, wherein it granted the
State's Motion for
Summary Judgment and denied the City's Cross Motions for Summary Judgment on the issue of
the liability and responsibility of the City to post
financial assurance for waste disposal
operations at the Morris Community Landfill and, in support thereof, states as follows
:
4 .
In its February 16, 2006 Interim Order, the Board held that what in fact
constitutes
"conduct" is critical in determining whether the City of Morris actually "conducted"
"waste
disposal operations" at the Morris Community Landfill (thus making
it liable for providing
closurelpost closure financial assurance for the facility in question)
.
5 .
In finding that the City "conducted" "waste disposal operations" at the facility in
question, the Board noted that it had looked beyond the terms of the operating permits issued for
the facility in question, to the "specific facts of the case as a whole"
.
6.
In turn, this Honorable Board then found that the City of Morris had "financed the
operation" of the facility in question, had litigated in conjunction with CLC, and (lastly) had
"profited from and treated the leachate" from the facility in question
.
In addition, while
expressly conceding that these operations alone may not constitute conducting a waste disposal
operation, the Board also specifically found that Morris had "discretion regarding decisions of
the site and took responsibility for some of the ancillary site operations
such as treatment of
leachate from the landfill" . In turn, the Board found that the "grand sum" of these specific acts
of conduct rose to the level of "operation" as anticipated by such and Section 811
.700(f)
.
7 .
The Respondent City of Morris respectfully submits that the Board was in error in
making such findings for the following reasons :
2
70483473v1806289
a.
In arriving at its decision, this Honorable Board specifically found that the City of
Morris did not actively conduct day-to-day
(i.e., waste disposal) operations at the facility
in question (see Interim Opinion and Order of the Board, page 14)
.
As both Section
21(d)(2) of the Act and Section 811.700(f) specifically provide that only those persons
who conduct waste disposal operations are liable for complying
with the financial
assurance requirements of that specific subpart the Board was then in error in fording the
City of Morris liable under this particular regulatory provision for the posting of
closure/post closure financial assurance for the facility in question.
b .
As indicated above, in making its ruling on the Cross Motions for
Summary
Judgment, the Board found that the City had " . ..financed the operation .
.." of the facility
in question. Nowhere does the factual record made by the State in this matter establish
that the City "financed" the operation of the landfill
.
c .
Further, assuming arguendo, and only for purposes of this Motion that the City
had in some manner provided some level of financial support for the operation of the
landfill, the providing of financial support does not,
as a matter of law, constitute
"conducting" of a "waste disposal operation"
(i.e., that conduct which is specifically
required by Illinois law to impose liability upon a person for providing
closurelpost
closure financial assurance) .
If providing financing for landfill operations constituted
"conducting a waste disposal operation, then any bank or other financial institution that
extended credit to a landfill operation would, as a matter of law, be liable for that
customer's closure/post closure financial obligations
.
3
70483473v1 806289
d.
Moreover, the
Board
found
that litigating certain
contested matters
"in
conjunction with CLC constituted "operation" of the facility in question so as to trigger
responsibility for providing closure/post closure financial assurance. As more than amply
and aptly demonstrated by the factual record herein, the City only chose to protect and
defend itself against claims prompted by actions taken by the State and/or initiated from
time-to-time over the past five years by the State. Defense of and/or protection of itself
against such claims and assertions made by the State (or, for that matter, participation of
any litigation concerning the closure/post closure status of this landfill)
does not, as a
matter of law, constitute conducting of a waste disposal operation.
e. In arriving at its finding that the City was liable for the posting of closure/post
closure financial assurance for the facility in question, the Board also found that the City
had "profited from and treated" leachate generated by the
City of Morris landfill .
Nowhere does the factual record made in this matter indicate that the City "profited"
from its acceptance in treatment of the leachate in question, or do anything more than
meet costs incurred in treatment of the leachate. Moreover, assuming arguendo and only
for purposes of this Motion that the City did "profit" in some manner from the
"treatment" of leachate, the garnering of some sort of economic and/or financial
gain
from the treatment of leachate from the facility does not, as a matter of law, constitute
"operation" of a waste disposal site as contemplated by either Section 21(d)(2) of the Act
or Section 811 .700(1).
f.
In addition, and while expressly conceding that each of the above-mentioned
activities in and of themselves may not constitute "operation" of a waste disposal
site,
this Board also specifically found that Morris had "
. ..discretion regarding decisions at
4
70 83473vt 806289
this site . .." and " .
. .took responsibility for some of the ancillary site operations such as
treatment of leachate from the landfill
. . .". Nowhere does the factual record made by the
State in this matter establish that the City had "discretion regarding decisions at the site"
or, moreover, if the City did arguably have discretion over various "decisions" at the site,
or that these "decisions" were in anyway related to `operation" of the waste disposal site
as that term is used in Section 811 .700(1) .
Moreover, aside from its contractual
commitment to accept leachate generated from the landfill for proper
treatment and
disposal, nowhere does the factual record made in this matter establish that the City took
"responsibility" for any other "ancillary site operations" .
In fact, the express terms of the
lease and operating agreement originally executed between the City and CLC (which is
attached as Exhibit B to the City's Reply to the State's Response to the Cross Motion for
Summary Judgment) place all decisions pertaining to operation of the facility squarely
upon CLC. In addition, and assuming arguendo and only for purposes of this Motion that
the City did in some manner take "responsibility" for some
of the "ancillary" site
operations (such as treatment of leachate from the landfill) such conduct does not, as a
matter of law, rise to the level of "operation" of a waste disposal site as
provided by
Section 811.700(f).
If in fact assuming responsibility for conducting of "ancillary site
operations" (again, such as treatment of leachate from the landfill) constituted the level of
"operation" of a landfill which would invoke responsibility for posting of closure/post
closure financial assurance under Section 811 .700(f), then any environmental
service
contractor or subcontractor that provided service to the site would be considered liable
for posting of closure/post closure financial assurance. (As would any municipal POTW
5
70483473v1 906299
that accepted leachate for treatment or, for that matter, provided any services [i.e.,
utilities] to a nearby landfill).
g.
As none of these individual acts constitute "conducting a disposal operation" at a
Municipal Solid Waste Landfill (MSWF), then, as a matter of fact and of law, the "grand
sum" of these acts cannot constitute "operation" of a `waste disposal site" as found by
this Board in its February 16, 2006 Interim Opinion and Order, and the
City's Motion
should be granted, or, at a minimum, the State's Motion should be denied
.
WHEREFORE, and for the reasons set forth above, the
City of Momss respectfully
requests that this Honorable Board reconsider its February 16, 2006 Interim Opinion and Order,
reverse its rulings on the Cross Motions for Summary Judgment,
and accordingly deny the
State's Motion for Summary Judgement against the City of Morris, and grant the City of Morris'
Cross Motion for Summary Judgment against the State of Illinois, and for such other and further
relief as this Honorable Board deems appropriate
.
Dated: Respectfrlly Submitted,
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
Charles F. Helsten
815-490-4900
One of Its Attorneys
This document utilized 100% recycled paper products
6
On behalf of the CITY OF MORRIS, an Illinois
Municipal Corporation
By: Hinshaw & Culbertson
70483473v1 B06289
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on March 31, 2006, she caused to be served a copy of the foregoing upon
:
Mr. Christopher Grant
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Fl
.
Chicago, IL 60601
Clarissa Grayson
LaRose & Bosco, Ltd
.
200 N. LaSalle, Suite 2810
Chicago, IL 60601
(VIA HAND DELIVERY)
Ms. Dorothy Gunn, Clerk
Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Bradley Halloran
Hearing Officer
Pollution Control Board
100 W. Randolph, Suite 11
Chicago, IL 60601
A copy of the same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour of 5 :00 p.m ., addressed as above
.
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
704152000 806289
PEOPLE OF THE STATE OF ILLINOIS
)
Complainant, )
vs .
)
COMMUNITY LANDFILL COMPANY,
)
INC., an Illinois corporation, and the CITY OF )
MORRIS, an Illinois municipal corporation,
)
Respondents .
)
Dated March 31, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
HINSHAW & CULBERTSON LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
NOTICE OF FILING
TO :
All counsel of Record (see attached Service List)
Please take notice that on March 31, 2006, the undersigned filed with the Illinois Pollution
Control Board, 100 West Randolph Street, Chicago, Illinois 60601, the City of Morris' Brief in
Support of Motion to Reconsider .
Case No. PCB No. 03-191
Respectfully Submitted,
On behalf of the CITY OF MORRIS
By: Hinsjiaw & Culbertson LLP
Chart
. Helsten
e of Attorneys
This document utilized 100% recycled paper products
REC:EO®VED
CLERK'S OFFICE
H AR,
3
12006
STATE OF
ILLINOIS
Pollution Control Board
70415199v 1 06299
RECEgVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Ni', R 3 12096
STATE OF
ILLINOIS
Pollution Control
Board
COMMUNITY LANDFILL COMPANY, INC .,)
an Illinois Corporation, and the CITY OF
)
MORRIS, an Illinois Municipal Corporation,
)
Respondents
.
)
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
vs .
PCB No. 03-191
BRIEFINSUPPORT OF MOTION TO RECONSIDER
In its Interim Opinion and Order of February 16, 2006, this Board held that a "grand
sum" of the City of Morris' separate instances of conduct rose to the level of "operation" of a
waste disposal site as provided for in Section 811 .700(f) .
However, any such construction of
Section 811.700(f) must, of course, be consistent
with Section 21(d)(2) of the Illinois
Environmental Protection Act (the Act), the underlying statutory provision upon which
Section
811.700(f) is premised.
As noted in the City's response to the State's Motion for Summary Judgment and Cross
Motion for Summary Judgment, the plain language of Section 21(d)(2) of the Act only applies to
those persons who "conduct a
. . . waste-disposal operation'
.
Again, as also noted in the City's Cross Motion for Summary Judgment, it is well settled
that words in the statute must be given their plain and ordinary meaning
.
King v. First Capital
Financial Services,
211 III. 2d 1, 821 N.E. 2d 1155, 1169 (2005) .
In
King
(828 N.E. 2d 1169,
citing
In Re the Marriage of Beyer,
324 111. App. 3d 305, 309-310, 753 N .E. 2d 1032 (201, the
court held that "a court may not supply omissions, remedy defects,
annex new provisions,
70483515v 1 806289
substitute different provisions, add exceptions, limitations or conditions or otherwise
change the
laws so as to depart from the plain meaning of the language employed in the statute"
.
Again, as also previously noted in the City's Cross Motion for Summary Judgment,
according to Black's Law Dictionary, the plain and ordinary meaning of the word "conduct"
is :
"to manage; direct; lead; have direction; carry on; regulate ; do business" .
Black's Law
Dictionary, 295 (6s` Ed. 1990) .
In this case, there is no question that the acts of conduct enumerated by this Board at page
14 of its Interim Opinion and Order (upon which it found that Morris was "operating" a waste
disposal site) clearly fall outside the plain and ordinary meaning of the term "conduct" . In fact,
not only does Mark Retzlaff, the IEPA Inspector assigned to this facility state under oath that it
is
CLC that "operates" the Morris County Landfill, and that CLC's employees manage the facility
(see Complainant's Exhibit I, paras. 3 and 7), the Board itself concedes in its opinion that it does
not appear that Morris actively conducts the day-to-day operations at the landfill
.
(See page 14
of Interim Opinion and Order) .
As such, the Board's determination that the City of Morris "operates" a waste-disposal
site cannot be premised upon the fact that Morris actually operates the day-to-day operations
of
the landfill or manages this site
.
If, then, the City is to be found to "operate" a waste disposal
site (so as to invoke responsibility on its part to post closurelpost closure financial assurance),
this determination must be supported by those other acts and conduct enumerated by the Board
at
page 14 of its Opinion which supposedly rise to the level of "operating a waste disposal site' or
"conducting a waste disposal operation" .
2
70483515v1 806290
It is respectfully submitted that none of those tangential, indirect acts and conduct rise to
the level of "operation" as contemplated by either Section 21(d)(2), or its enabling regulation
(Section 811.700(4) .
Again, the record made in this matter (which the Board must rely upon in arriving at its
ruling on the Cross Motions for Summary Judgment) contains insufficient evidence to support
granting of the State's Motion for Summary Judgment
.
In the first instance, the extension of credit or otherwise "financing" a business operation
does not rise to a creditor being deemed to have operated that business enterprise .
Otherwise,
any lending institution that extended credit to a business would be held liable for the
consequences of the operation of that business
.
See generally Board of Managers
of Old Willow
Falls Condominium Association v. Glenview State Bank, 1989 WL 152836 (Ill.App. ls` Dist.) (A
secured lender that extends credit in financing to a project is not deemed a "co-developer)" ; In re
S.M. Acquisitions Co. v. Matrix IV, Inc., 332 B.R. 346 (2005) . In re Badger Freightways, Inc., v.
Continental Illinois National Bank and Trust Company of Chicago, 106 B.R. 971 (1989).
(Banks are not generally considered fiduciaries of their borrowers so as to impose liability upon
financial institution for acts of parties they have extended credit to, absent the lender becoming
the ultra eagle of the customer in exercising pervasive control over the business operation of the
same).
In addition, the election to become involved in litigation so as to protect oneself against
the assertion of claims for the advancement of positions by a regulatory agency that would have
a deleterious financial impact is in no way indicia of conducting a business operation (or, for that
matter, a waste disposal operation)
.
See generally Travelers Casualty and Surety Company v.
Interclaim (Bermuda) LTD., 304 F. Supp. 2d 1018 (N.D .
I11.2004) .
3
70483515v1806299
Likewise, the furnishing of services to a facility does not constitute "operation" of that
facility.
See United States v. Consolidated Rail, 729 F . Supp. 1461(D_ Del . 1990) .
The
providing of materials or services to a facility does not constitute operating or exercising control
over that facility). Otherwise, if the contrary were the case, any municipality that provided
utilities or other municipal services of any type, kind or sort to a business would be deemed to be
responsible for that business's operations .
Lastly, as noted in the City's Motion to Reconsider, the record made in this matter
is
devoid of evidence of any "discretion" which the City of Morris had concerning material
and/or
critical site management decisions . More specifically, the City did not : 1) design or construct the
facility, 2) had no authority to control or manage the day-to-day operations of the facility, 3) over
and above having the authority to control or manage day-to-day operations of the facility, in fact
exercised that control or actively participate in day-to-day operations and management of the
facility, 4) place its own employees or personnel at the facility, 5) have the authority to
approve
capital expenditures and/or all other budgetary affairs of the entity managing the facility on a
day-to-day basis, 6) have the authority to approve changes in the hiring and firing of personnel
by the entity in charge of operating and managing the facility,
7) have the power to establish
operational plans and procedures, and/or 8) mandate changes in the way the facility
is being
operated. In fact, a reading of the Lease and Operating Agreement by and between the City and
CLC (which, again, was attached to the City's Reply to the Complaint's Response to the City's
Cross Motion for Summary Judgment); demonstrates that all
such matters were within the
exclusive control of CLC
.
In fact, the terms and conditions of such Agreement conclusively
establish that the City did not "operate" the landfill in question or otherwise
conduct a waste-
4
70483515v1806289
disposal operation. (See generally
Nurad, Inc. v. Hooper
& Son's, Inc.) 91-1775 (41h Cir. May
29, 1992) .
As noted above, then, none of the acts or instances of conduct noted by the Board in
support of entry of Summary Judgment against the City constitute evidence
of conducting a
business operation, or, more specifically, conducting a waste-disposal operation
.
As such, if
none of the individual parts satisfy the definition of conducting a waste-disposal
operation, or
operation of a waste-disposal facility, then, in turn, the "grand sum" of these
non-actionable
individual parts cannot collectively rise to the level of operation anticipated in Section
21(d)(2)
of the Act or Section 811.700(f) (in many respects like a mathematical equation, where each
separate, non-actionable element represents a zero value, the sum of those elements
cannot total
anything more than a zero) .
Moreover, the City of Morris can find no legal authority for the proposition that these
individual, non-operative factors in total would be deemed to constitute conducting a business
operation or operation of a facility. The City would submit no law exists on this point because
no reviewing tribunal has ever found that the combination of such singular, non-operative, non-
actionable events of conduct could constitute active control of a waste disposal facility.
As initially stated by the City in its Cross Motion for Summary Judgment, the
Complainant's assertion that the City of Morris is required to comply with Section 21(d)(2) of
the Act and Section 811 .700(f) of the Code merely because it is the owner of the property on
which the landfill is located and engages in some singular, non-operative acts which are
tangentially related to the landfill parcel would require a wholesale rewriting of these
sections .
In effect, this finding would require the word "conduct" contained in these sections to be
replaced with the word "own or be connected with in some manner or form"
.
5
70483515v1 806289
Again, clearly it was not the intention of the Legislature for either Section 21(d)(2) of the
Act (or its enabling regulations) to apply to entities that are not engaged in active, day-to-day
operations of a landfill or in active management of the landfill
.
Again, in keeping with the Act's own definition of operator (which make clear that it is
operators who conduct waste disposal operations), this Board has previously held
that where
there is an active operator at the site, it is only the operator, and not the owner who is liable
for
failure to provide the required financial assurance
.
See People v. Wayne Burger and Burger
Waste Management,
PCB 94 373 May 6, 1999 (1999 WL 304583). In addition, even as noted by
this Honorable Board in its Interim Opinion and Order, in TerMaat v. Anderson, et at, PCB 85
129 (Oct. 23, 1986), this tribunal previously found that where an on-site contractor had
little or
no discretion over performance of day-to-day operations and active management
of the site, it
was those persons who exercised authority and control over day-to-day operations that would be
deemed responsible for posting closurelpost closure financial assurance . Accordingly, just as the
on-site operator in
TerMaat (who
had no significant control over day-to-day operations and
active management of the site) was found not to be liable for posting of financial assurance,
the
City of Morris (which, by this Honorable Board's own Interim Opinion and
Order has been
recognized as not having control over day-to-day operations and management of the
facility)
should (consistent with the
TerMaat
decision) be found to not be responsible for posting of
closure/post closure financial assurance
.
As the Board as aptly noted in its Interim Opinion and Order decision, "The Board should
only grant summary judgment when the Moveant's right to relief is clear and free from doubt"
.
Dodw,
181 Ill. 2d 483, 693 N.E. 2d 370, citing
Putrill v.
Hess, 111 Ill. 2d 229, 240, 489 N.E. 2d
867, 871 (1986). Although the City contends that its right to relief is "clear and free" from
6
7W3515,1806289
doubt, the converse is not true with respect to the State's case . Again, the State has presented
precious little (if any) competent evidence under the controlling law in this case to support its
Motion for Summary Judgment. As such, in the alternative, if this Board does not grant the
City's Motion for Summary Judgment, it should in any event reverse its granting of the State's
Motion for Summary Judgment, and set order evidentiary hearing on the issue of liability
.
Dated : Respectfully Submitted,
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
On behalf of the CITY OF MORRIS, an Illinois
Municipal Corporation
By: Hinshaw & Culbertson
Charles F. Helsten
One of Its Attorneys
This document utilized 100% recycled paper products
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on March 31, 2006, she caused to be served a copy of the foregoing upon :
Mr. Christopher Grant
Assistant Attorney General
Environmental Bureau
188 W. Randolph St ., 20th Fl
.
Chicago, IL 60601
Clarissa Grayson
LaRose & Bosco, Ltd .
200 N. LaSalle, Suite 2810
Chicago, IL 60601
(VIA HAND DELIVERY)
Ms. Dorothy Gunn, Clerk
Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Bradley Halloran
Hearing Officer
Pollution Control Board
100 W. Randolph, Suite 11
Chicago, IL 60601
A copy of the same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour of 5 :00 p.m ., addressed as above .
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
70415200v1 806289
